A NEW Bill dealing with children in care, at present before the Oireachtas, has been criticised by a number of child welfare organisations for giving excessive powers to the HSE and for not allowing the child to be heard.
In a joint commentary on the Child Care (Amendment) Bill 2009, Barnardos, the Irish Association of Young People in Care and the Irish Foster Care Association, say: “The powers given to the HSE under the Bill appear to the group to be too far-reaching” in relation to children for whom a special care order is made.
Special care orders are made where children need to be held in special units for their own protection and welfare.
The Bill sets out the conditions for making such orders and provides for a replacement for the Children’s Acts Advisory Board.
It also contains a number of amendments to the Child Care Act 1991 with regard to guardians ad litem, who represent the child in certain legal proceedings, which are also criticised by the child welfare groups.
Referring to the special care orders, the groups say: “A significant gap in the Bill is that it fails to address the rights of a child to be heard in relation to the making of a special care order.” It points out that once a special care order has been made, the HSE will be given considerable powers in relation to the child.
“These include the power of the HSE to agree to medical or psychiatric examination, treatment or assessment and the authority of the HSE to consent to a passport application.
There is no requirement that the HSE apply to the court to dispense with parental consent.
"These powers appear to exclude a child's own view, the child's family or a guardian ad litemin a way that could disadvantage the child", according to the submission.
It says the Bill is unclear regarding the child’s right to representation and does not grant such a right, either directly through a solicitor for children able to instruct one or through a guardian ad litem.
It also criticises amendments to the existing legislation that could have the effect of severely undermining the existing limited ad litem system.
This includes a provision that the HSE could pursue a guardian ad litemfor costs.
Such a step could militate against people working as a guardian ad litemand consequently undermine this important service for children, they state.
They are also critical of other moves to restrict the role of the guardian, including the fact that the court may instruct him or her as to the performance of their duties, including directions for the appointment of counsel and an amendment stating that only costs “reasonably” incurred by a guardian will be paid by the HSE.
It suggests that the responsibility of incurring the cost of a guardian ad litemshould be removed from the HSE and placed with an independent agency with no interest in the proceedings, such as the courts.